DUI Category Archives — Page 7 of 8 — Michigan Criminal Defense Lawyer Blog Published by Michigan Criminal Defense Attorney

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.

Barone to Present a Michigan State Bar OWI Seminar

Published on: May 22, 2017 | by Patrick Barone

Barone Defense Firm founding partner Patrick T. Barone has been asked to present at the upcoming Solo and Small Firm Drunk Driving Update. This seminar, presented by the Michigan State Bar, will take place Thursday, May 22, 2017 from 6:00 – 8:00. The location is at the Western Michigan University Cooley Law School’s Auburn Hills campus. Food and light refreshments will be served, including appetizers, beer, wine and soft drinks. The cost is a very modest $20.00 for State Bar Solo and Small Firm section members, $25.00 for all others. Law Students are free.

This seminar will cover the basic nuts and bolts involved in the representation of those alleged to have driven under the influence of alcohol or drugs. Topics to be covered include pretrial proceedings, driver Assessment and Appeals matters, including driver license restorations and implied consent matters and trial practice. Patrick Barone will be presenting on the topic of trial skills. Mr. Barone has tried 100’s of drunk driving cases and frequently lectures locally and nationally on advanced trial skills, including most recently this past March at the Advanced OWI Seminar in Columbus Ohio.

Hearing Officer Brian Longman with the Michigan Secretary of State is also among the panelists. Mr. Longman will be speaking about implied consent matters, including available defenses, and more generally, how to conduct such a hearing on behalf of a client who is alleged to have unreasonably refused a breath or blood test.

What it Means to “Operate” a Vehicle In the Context of a Michigan DUI Charge

Published on: February 16, 2017 | by Patrick Barone

In some situations, the police can charge you with drunk driving in Michigan even if the police never saw you driving your car. However, the legal analysis in these cases is very fact specific, and the law is quite complex. In some situations, courts have upheld convictions when the police never saw anyone operating the car. But in other cases, courts have held there was no operation. To understand why this difference exists, and why a court might allow such a non-witnessed drunk driving case to stand, you need know a few things about the drunk driving laws of Michigan.

To begin with, the crime of drunk driving is called OWI or “operating while intoxicated.” Michigan does not use the word “drive” so Michigan’s drunk driving law is not called driving under the influence (DUI), or driving while intoxicated (DWI). The word operate is much broader than the word drive. The Michigan Motor Vehicle Code defines “operate” or “operating” as “being in actual physical control of a vehicle” whether licensed or not. MCL 257.35a. Thus, the plain language of the statute requires that driver’s actions must establish “actual physical control” of the vehicle.[i] But the analysis doesn’t end there. What happens for example if a person is asleep or unconscious?

A question sometimes raised in this context is whether a sleeping or unconscious driver can be found to be in “actual physical control.” In these cases, which often have unique facts, the Michigan Supreme Court has expanded the term “operation” such that ‘operating’ is defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Accordingly, “[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.”[ii]

National Movement Toward Lowering the Legal BAC Limit Begins in Utah

Published on: January 4, 2017 | by Patrick Barone

A Utah lawmaker is backing a change in Utah’s DUI law lowering the legal limit to .05%. Utah’s current legal limit is .08%. This change would make Utah the first state in the Union to reduce the legal limit from .085 to .055. In 2005 Michigan was the last state to reduce the legal limit to .08. Michigan’s legal limit goes back up to .10 in 2018.

The legal limit is currently .08% in all 50 states. This uniform legal limit came as part of a Congress -approved amendment to the 2001 transportation appropriations bill that tied the legal limit into highway funds. In other words, a .08% legal limit was a condition precedent to a state receiving highway funds from the national government. However, there appears to be no reason states can’t reduce the limit even further, and there is little doubt that after Utah many other states will follow suit.

The average drinker need only consume two units of alcohol to be at a .05. A unit of alcohol is one 12 oz. 5% beer, one 6 oz. 12% wine or one shot (1.5 oz.) of 80 proof liquor. A unit of alcohol is also sometimes called a standard drink. Each standard drink will raise a person’s blood alcohol level .025 per drink. The average man eliminates alcohol at .015% and the average woman eliminates at .018 per hour.

Driveway DUI’s: Michigan Court Rules it Not Unlawful to Drive Drunk in Own Driveway

Published on: December 30, 2016 | by Patrick Barone

Disclaimer: This case was overruled by the more recent Michigan Supreme Court case of People v. Rea.

The Michigan Court of Appeals recently ruled that a person may drive drunk in their own driveway. The name of the case is People v. Rea, 315 Mich. App. 151 (2016), and in this case, after having “a lot” to drink the defendant decided he wanted to listen to some music. So, he drove his car from his garage to a point in his private driveway in line with his house. A neighbor didn’t like the defendant’s taste in music and called in the loud music. Thereafter, two police officers responded to the 911 call.

When they arrived, the defendant was seated in the driver’s seat, with the driver’s side door open. According to the court’s opinion, the “vehicle was parked deep in defendant’s driveway, next to his house.” One of the officers told him to turn down the music, and then left. At some point the neighbor called again, and when one of the officers returned, he could not see the defendant’s car. The neighbor called a third time and this time when the police arrived the officer observed that the garage door was opened, “and defendant’s vehicle backed out for “about 25 feet” before stopping still within the defendant’s yard and property. He then pulled the car back into the garage. He was arrested as he walked toward his house.”

Caffeine Related DUI Charges and What Constitutes An “Intoxicating Substance” in Michigan

Published on: December 29, 2016 | by Patrick Barone

An attorney in California has been charged with DUI for allegedly driving under the influence of caffeine. The officer who pulled the man over was working on alcohol enforcement when the driver pulled in front of him, cutting him off, and then driving erratically. A roadside breath test showed no alcohol was present in the driver’s body. 18 months later, a blood test was produced only showing the presence of caffeine. Apparently, a motion to dismiss was denied and the case set for trial.

While this case appears to be first of its kind, it’s not likely to be the last. In California, like Michigan, it is unlawful to drive under the influence of any drug, including alcohol. The term “drug” is very broadly defined, and therefore can include caffeine and even less “intoxicating” substances like ginseng.

This is because, as previously discussed, Michigan’s definition of drug includes even things listed in the homeopathic pharmacopoeia. Specifically, Michigan’s drunk driving statute, MCL 257.625(25) indicates that an intoxicating substance means: any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following:

Legal Alcohol Driving Limit

Published on: September 2, 2016 | by Patrick Barone

Blood Test Drunk Driving | Michigan DUI Attorney

When investigating a possible case of driving under the influence, the police may ask you for a sample of your breath or blood. Breath testing remains the most common type of chemical testing, but DUI blood tests are becoming more common.

If your blood is taken by law enforcement the purpose is to test if for alcohol or drugs. DUI cases involving blood are considered by most DUI lawyers to be more difficult to defend because blood test results are considered to be a more reliable.