Articles Posted in OWI

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.

A Michigan implied consent hearing is an informal hearing where the officer that arrested you for drunk driving provides testimony to prove that you unreasonably refused a breath blood or urine test. Before we move on with a further discussion of the hearing, let’s review the concept of implied consent, and how it applies in a Michigan drunk driving case.

The Legal Fiction of Implied Consent

Both the Michigan and the United States Constitutions provide that the police can’t search you, your home or your car without a warrant. Thus, before the police may proceed with a search of your breath, blood or urine, they must first obtain a warrant. However, there are many exceptions to this warrant requirement and consent is one of them.  This is where the legal fiction of implied consent comes into play.

Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

The United States Supreme Court has recently ruled that the community caretaker exception to the search warrant requirement does not apply to a person’s home. The name of the case is Caniglia v. Strom, and in a unanimous opinion the Court found that guns seized by the police after entering a home without a warrant were not admissible in evidence on the basis of the community caretaker exception.

The Caniglia case involved a married couple who had been arguing in their residence. During the fight the husband grabbed his gun and told his wife to shoot him.  The wife took possession of the gun, and put it away, hiding the ammunition. She later left the house to stay at a hotel, and because she was worried that her husband might suicide, she called the police. The wife then met the police back at their home where the husband had remained.  The police instructed the wife to stay in the car as they interviewed the husband.

The police believed that the husband posed a danger to himself and called for an ambulance to take him for a psychiatric evaluation.  He claimed the police agreed that if he went to the hospital, they would not take his guns whereas the police claimed he consented to a search of his home.  The wife, believing the officers that her husband had consented, then guided the police to where the guns were inside the home, and the police took possession of them.  No arrest was made, and no charges were brought against the husband.  The guns were eventually returned, but the Caniglia’s filed a lawsuit, nevertheless, claiming a violation of Section 1983 under the Second, Fourth and Fourteenth Amendments. In the lawsuit the Caniglia’s sought money damages as well as injunctive and declaratory relief.

The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.

The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT.  He consented, and thereafter was arrested and charged with drunk driving causing serious injury.  Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.

The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.”  In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.

In the case of People v. Pagano, the Michigan Supreme Court has indicated that a traffic stop based only on an anonymous 911 call is invalid. This ruling affirmed the District Court’s dismissal of both the child endangerment drunk driving and open intoxicants in a motor vehicle charges.

As the Pagano opinion indicates, the police received information from central dispatch that a woman was obnoxious and yelling at her children and appeared to be intoxicated.  The 911 caller also provided identifying information about the vehicle driven by the ostensibly intoxicated woman, including the license plate number and make and model of the car.

The Michigan Supreme Court, in the unanimous Pagano opinion, held that information provided to and by the officer failed to establish a “reasonable and articulable suspicion” either that a traffic violation had occurred or that criminal activity was afoot. While the Court acknowledged that the 911 caller was able to appropriately identify the individual involved and the car being driven by her, the tip still did not give rise to anything more than, at best, an “inchoate or unparticularized suspicion” of criminal activity. Otherwise, there was nothing in the record to suggest that the police officer making the traffic stop corroborated the 911 caller’s mere assertion that the driver was drunk.  There was no bad driving observed by the police officer, and the stop was based only on the information provided to the 911 caller.  After all, said the Court, parents can obnoxiously yell at their children without being drunk, and the 911 called also did not indicate that any bad driving was observed.

In this Michigan Intoxicated driving causing death, the defendant Willett entered a no contest plea thereby admitting that he was operating a motor vehicle with the presence of any amount of marijuana in his body, and that the operation of his vehicle caused the death of another, under Michigan Compiled Laws § 257.625(4)(a)and (8).

Mr. Willett was sentenced to 4 to 15 years of imprisonment. Prior to sentencing the defendant, the court questioned him about his marijuana use, and the defendant, then 21 years of age, admitted he used marijuana daily and had started using marijuana at age 14 or 15.  The court concluded the pre-sentencing colloquy by admonishing the defendant and stating to him that it was his use of the drug that lead to the horror of the accident and death. On appeal the defendant argued that the court’s sentence was based on inaccurate information, and the Michigan Court of Appeals agreed.  The case was reversed and remanded.

The facts of this case include an admission from the defendant, at the roadside, that while he was driving, he was getting sleepy and closed his eyes. He crashed into the car in front of him immediately after opening his eyes, creating a multi-vehicle accident leading to the death of one of the vehicle’s occupants.

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