— DUI

How Does Drinking on an Empty Stomach Effect My Breath or Blood Test Results?

Published on: September 12, 2018 | by Patrick Barone

Generally, when a person drinks on an empty stomach they will reach a higher blood alcohol concentration more quickly, and this higher concentration will last longer, then if the same amount of alcohol is consumed on a full stomach. This is one reason some people get charged with drunk driving even when they think they are drinking responsibly. They did not realize the little alcohol they had would put them over the legal limit. Here’s why this is true:

There are three things that impact a person’s blood alcohol concentration. These are alcohol absorption, distribution and elimination. Various factors can potentially impact all three of these factors, and possibly increase a person’s breath test. Generally the absorption of alcohol is a function of food in the stomach, distribution is a function of the amount of water present in various tissues in the body and the elimination of alcohol is largely a function of a person’s prior exposure to alcohol.

Ethanol, which is also called “beverage alcohol” or simply “alcohol,” has many interesting traits and characteristics. Because of Ethanol’s unique molecular structure, it will begin to be absorbed into the blood as soon as it comes into contact with tissues in your body. So, the absorption of alcohol will begin in your mouth. However, about 80% of the absorption into your bloodstream will take place in the lower intestine. This means that anything that stands in the way of alcohol getting from your stomach into your small intestine will significantly delay absorption. Certain foods, such as those that are high in fats and proteins, require the most time to digest. While you are digesting, a muscle between your stomach and your small intestine remains closed. Then, as you’re done digesting, the muscle opens, and the contents of your stomach pass into the small intestine. This typically happens over time, meaning smaller amounts of alcohol pass into your bloodstream for each unit of time. Also, as you are drinking alcohol, some elimination takes place in the stomach, and some alcohol is passing into the blood through the stomach tissues and then is eliminated by the liver. This means there’s less alcohol available to pass into the small intestine when the digestion is complete.

What is Michigan’s Under 21 Zero Tolerance Law?

Published on: July 17, 2018 | by Patrick Barone

You are a drunk driver if you are under 21 years of age in Michigan, drink any amount of alcohol and then drive a car. This is called the Michigan zero-tolerance drunk driving law. To fully understand this law, it is important to know how “any amount of alcohol” is defined. Michigan’s Compiled Laws 257.625(6)(a) and (b) provide as follows:

As used in this subsection, “any bodily alcohol content” (BAC) means either having an alcohol content of 0.02 grams or more but less than 0.08 grams or having the presence of any alcohol within a person’s body resulting from the consumption of alcoholic liquor.

If you are under 21 years of age, and have an alcohol content of .08 or more, then you will be charged with an “adult” drunk driving, which carries greater punishments and a more draconian driver license sanction.

Can I Refuse Police Officer DUI/OWI Tests?

Published on: June 8, 2018 | by Patrick Barone

Yes, you can lawfully refuse police DUI/OWI tests without penalty. However, there are exceptions, and in some situations, it may not be in your best interest to refuse these tests. Therefore, before you make this decision, you should discuss your options directly with a lawyer.

Generally speaking, if you are stopped by the police for drunk driving in Michigan, and the police confirm that you’ve been drinking, then the police will ask for your driver license, registration, and proof of insurance. After the officer runs your information through their computer and confirms there are no warrants our against you, then they will return to your car and ask you to step outside for the administration of several field sobriety tests. These tests usually include the standardized field sobriety tests, such as the horizontal gaze nystagmus, walk and turn and the one leg stand. Other tests might include the alphabet and counting backward. If the police ask you to take these tests, and you refuse, then no penalty applies.

After you have either submitted to the field sobriety tests or refused them, the police with next ask you to submit to a preliminary or roadside breath test (PBT). This test can also be refused, however, there is a penalty associated with a refusal of a PBT. Such refusal is a civil infraction, which means it is not a crime. The penalty is a fine only. There are no points assessed and there is no driver license sanction.

Possible Conditions of Bond on a Michigan DUI OWI

Published on: June 5, 2018 | by Patrick Barone

After you’ve been arraigned on your Michigan DUI/OWI, the court will make a determination as to bond conditions. The court will add conditions to your bond because you have been charged with a serious offense and the court wants to make sure that, while out on bond, you’re not continuing to endanger the public by driving drunk. For this reason, many of the conditions of bond in a DUI/OWI case address the abuse of alcohol.

Michigan OWI Bond Conditions

There are many other possible conditions of bond, and these can include any or all of the following:

Amish Man on Horse Drawn Buggy Arrested for Drunk Driving

Published on: May 22, 2018 | by Patrick Barone

On March 22, 2018, an Amish man was arrested in Ohio for drunk driving after he ran a stop sign. He admitted to the police that he drank 10 beers. The police noticed the failure to stop and then began following the buggy because they believed it may be lead by a runaway horse or that the driver was suffering from a medical emergency. Once they caught up to and stopped the buggy, they found that the driver had a strong odor of intoxicants on his breath. They also observed an open can of beer on the floor inside the buggy. The driver of the buggy also was not able to pass the field tasks, including the one leg stand, walk and turn and horizontal gaze nystagmus. The 21-year-old man was then arrested for drunk driving, and a breath test suggested that he had a bodily alcohol level of .12%.

It appears that this young man was on the tail-end of his “Rumspringa,” which is the Amish right of passage, where, from ages 16 to 21 Amish youth are encouraged to explore the world, including all its vices. The hope and belief of the Amish is that once experienced, the youths will return to their formerly simple life and remain there for the rest of their lives. In other words, they’ll learn that the outside world is not all it’s cracked up to be.

While the case described happened in Ohio, and while another Amish youth was arrested for DUI in Pennsylvania, it is certainly possible that such an arrest could also happen in Michigan. After all, Michigan is home to the Nation’s sixth largest Amish population. In fact, Michigan has 86 Amish church districts which are spread among as many as 35 different settlements. Many of these are in mid-Michigan, including Hillsdale and Branch Counties in the south. The largest Amish community is in St. Joseph County. Known as the Centreville community, it also the oldest in Michigan. The Amish communities in Michigan are also spread as far north as Mackinac County all the way up to the Upper Peninsula. With all of Michigan’s Amish communities and buggies, it would seem that an Amish DUI is certainly a possibility in Michigan. However, many of the Amish communities in Michigan are on the more conservative side, and not all Amish communities follow the Rumspringa tradition.

What’s the Difference Between Impairment and Intoxication?

Published on: May 11, 2018 | by Patrick Barone

There are several ways to look at this question. The National Highway Traffic Safety Administration defines the two terms this way. Notice the results-based language contained in these definitions:

Impairment—Refers to the deterioration of an individual’s judgment and/or physical ability. Physiological and cognitive impairment begin at BAC levels below those that are associated with intoxication. As a legal standard, impairment and DWI laws are based on a person’s physical or mental impairment as judged on the basis of BAC level, performance in standardized field sobriety tests, or observed behavior. Although this report is focused on impairment from alcohol, impairment can result from other substance use, distracted driving, and other reasons.
Intoxication—Refers to the condition of having physical or mental control markedly diminished by the effects of alcohol or drugs. This is usually based on a subjective determination (one feels the sensation or observes a behavior in another person). Physiological impairment begins at BAC levels below those that are associated with intoxication. Intoxication is not a legal standard.

Scientists have produced charts such as this one[i], which much more carefully explain the differences:

Blood Alcohol Concentration	Stage of alcoholic influence	Clinical Signs and Symptoms
0.01 – 0.05	subclinical	Influence of effects not apparent or obvious. Behavior nearly normal by ordinary observation. Impairment detectable by special tests.
0.03 – 0.12	euphoria	Mild euphoria, sociability, talkativeness. Increased self-confidence, decreased inhibitions. Diminution of attention, judgement and control. Some sensory-motor impairment. Slowed information processing. Loss of efficiency in critical performance tests.
0.09 – 0.25	excitement	Emotional instability, loss of critical judgment. Impairment of perception, memory, and comprehension. Decreased sensatory response, increased reaction time, Reduced visual acuity, peripheral vision and glare recovery. Sensory-motor incoordination, impaired balance. Drowsiness.
0.18 – 0.30	confusion	Disoriented, mental confusion, dizziness. Exaggerated emotional states (fear, rage, grief, etc.). Disturbances of vision (diplopia, etc.) and of perception of color, form, motion, dimensions. Increased pain threshold. Increased muscular incoordination, staggering gait, slurred speech, Apathy, lethargy.
0.25 – .40	stupor	General inertia, approaching loss of motor functions. Markedly decreased response to stimuli. Marked muscular incoordination, inability to stand or walk. Vomiting, incontinence of urine and feces. Impaired consciousness, sleep or stupor.
0.35-0.50	coma	Complete unconsciousness, coma, anesthesia. Depressed or abolished reflexes. Subnormal temperature. Impairment of circulation and respiration. Possible death.
0.45+	death	Death from respiratory arrest.

The legal definition is still different. In Michigan, the law says that it is unlawful to operate a motor vehicle while intoxicated. This is called OWI or operating while intoxicated. A person is intoxicated if they have a bodily alcohol level at or above .08% and/or where alcohol has materially and substantially lessened their ability to operate a motor vehicle in a normal way. The standard jury instruction for impairment says this:

To prove that the defendant operated while visibly impaired, the prosecutor must prove beyond a reasonable doubt that, due to the drinking of alcohol the defendant drove with less ability than would an ordinary careful driver. The defendant’s driving ability must have been lessened to the point that it would have been noticed by another person.

i[] See, Jones, Garriott’s Medicolegal Aspects of Alcohol, Pharmacology and Toxicology of Ethyl Alcohol, Lawyers and Judges Publishing Company, Fifth Ed., pg 28, 2007. (chart copyright by Kurt M. Dubowski, University of Oklahoma College of Medicine, Oklahoma City, OK, 1997).

When Will Michigan Have a .05 Legal Limit for Drunk Driving?

Published on: May 7, 2018 | by Patrick Barone

Michigan is likely to have a .05 legal limit for drunk driving within the next five years. This is because the National Highway Traffic Safety Administration (NHTSA) has begun pushing a .05 legal limit at the national level. Once a .05 legal limit is adopted as national policy, the federal government will use highway funds to force all states to lower their legal limits to .05. Michigan will capitulate to this new lower legal limit, just as they did in 2003 when the legal limit was lowered from .10 to .08.

The latest round of NHTSA’s efforts toward a national .05 legal limit is contained in its publication entitled: Getting to Zero Alcohol-Impaired Driving Fatalities: A Comprehensive Approach to a Persistent Problem. This publication first sets forth their definition of the problem, which is alcohol-related traffic offenses, and then details their proposed solution, which includes a lower legal limit of .05 combined with increasingly aggressive law enforcement practices, including roadblocks.

NHTSA’s initial statement or premise is that:

Is it Unlawful to Operate a Drone While Intoxicated?

Published on: January 22, 2018 | by Patrick Barone

Yes, it may be unlawful to operate a drone while intoxicated at the federal level, and may soon be unlawful at the state level as well.

However, the punishment varies depending on the specific law violated. As drones become more common and more popular, some states are looking at drafting laws that will impose criminal consequences, including the possibility of jail, for operating a drone while intoxicated. An example of this is the New Jersey law that was introduced in June 2017, and that passed both houses on January 10, 2018. The law is expected to be signed into law. The punishment for a violation of the New Jersey statute is up to six months in prison or a $1,000 fine.

The text of the New Jersey law first sets forth the definition of the word ‘Operate,” as meaning “to fly, control, direct, or program the flight of an unmanned aircraft system.” Relative to alcohol, the statute makes droning while intoxicated unlawful, and indicates specifically:

How to Win a Drunk Driving Case Without Trying

Published on: December 12, 2017 | by Patrick Barone

Can You Really Win a Drunk Driving Trial Without Even Trying?

Sometimes, winning a trial or a contested hearing comes down to knowing what not to do! In drunk driving cases, nowhere is this truer than with administrative hearings held on appeal from an alleged implied consent violation. To understand why this is true, it’s helpful to know a little bit about the Michigan Implied Consent Law and about administrative hearings.

If you have been charged with drunk driving in Michigan and refused to take a breath or blood test at the request of the police officer, then you will be charged with a violation of Michigan’s Implied Consent Law, pursuant to MCL § 257.625f. A violation of the implied consent law will result in the suspension of your driver’s license for up to 2 years.

Using Medical Marijuana While on Bond for Drunk Driving

Published on: November 7, 2017 | by Patrick Barone

If you are charged with drunk driving in Michigan, then the clear majority of judges will require that you abstain from all alcohol and all illegal drugs. This will be a condition of your bond, and to be sure that you are compliant with your bond, you will be tested, usually randomly, for both alcohol and drugs.

If you are a medical marijuana user, then these bond conditions present a special problem for the courts because you have the lawful right to use marijuana. However, marijuana remains a schedule I drug at both the state and federal levels. This means it is an illegal drug that you can use legally.

Because this is a legal gray area, courts differ relative to their willingness to allow a person who is on bond to continue using medical marijuana. Some courts allow this while others do not. Your attorney can help you determine what is likely in your case.