Articles Posted in OWI

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.

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense.  The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020.  The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020.  Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.

In January 2020 it came to light that employees of Intoximeters, the company retained by the Michigan State Police to maintain all the alcohol breath testing devices used in Michigan’s DUI investigations, had committed fraud. This fraud included the falsification of the documentation necessary to confirm that the breath test units were working properly.  Much has happened and been learned about the fraud in the ensuing 12 months, and this has culminated in the recent filing of a complaint in the Federal District Court for the Eastern District of Michigan by the Marko Law Firm.  The Firm’s Federal Complaint alleging Fraud was filed January 26, 2021.

Lawsuit Background

The device used to test a driver’s breath in every drunk driving investigation involving breath evidence in Michigan is called the DataMaster DMT. In 2006 Michigan purchased approximately 160 of these devices and paid about $6,000.00 per unit.  These devices were intended to replace the aging DataMasters then in use around the state.

If you were arrested for DUI in Michigan, then you were likely given either a breath or blood test. The purpose of this test is to determine if you had a bodily alcohol level at or above Michigan’s legal limit of .08. Because a breath test above the legal limit is all the prosecutor needs to prove your guilt, a successful trial defense requires a successful breath test defense.

Many lawyers see DUI cases with breath tests as not defensible. While there is little question that juries tend to give breath test results a great deal of “weight” in deciding their verdicts, all breath test cases are defensible at trial. For example, the Michigan DUI lawyers at the Barone Defense Firm have successfully used all eleven of the following defenses:

  1. Breath Test Operator Mistakes – the typical DUI officer in Michigan has only attended a single one-day course after which they become certified class II operators of the breath test machine, in Michigan called the DataMaster DMT. Only a couple hours of this one-day training actually covers the administration of the breath test. The rest of the training relates to things like how the machine works, how to fill out paperwork and other related administrative tasks and functions. There is a written test given after the training, and officers only need to score a 70% to pass.  If they don’t pass a second time, they can retake the training, after which they get two more tries. Basically, this means everyone passes. Making matters worse, after this “training” there is almost no oversight in the field to confirm that the officer is properly administering the test, and the training does not include a practicum. Because the training is so inadequate, officers often make mistakes in administering the breath test, mistakes they may be totally unaware they are making. Some of these mistakes can lead to false and unreliable test results. These mistakes can be uncovered through a careful review of the breath test being administered and/or through cross-examination at trial.

Attorney and Practice Magazine recently invited Patrick Barone “membership” as one of Michigan’s Top 10 Attorneys. The bar to entry?  Payment of either $295 for 2020, $295 for 2021 or $590 for both years. Subsequent to payment, Mr. Barone would have available to him a host of impressive materials, from a nice looking website badge to a all plaque to be proudly displayed on the office wall.

Lawyer Ratings Have Become Big Business

In the last decade lawyer ratings have become big business. Most of them consist of a few lawyers getting together and deciding they can get rich by offering paid-for credentials to other lawyers. Several times per month at the criminal defense lawyers at the Barone Defense Firm receive solicitations to be listed on this “top 10 list,” or that “nation’s best list,” usually with the only bar to entry a small payment of usually about $300-$500.

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Marisa Feil of FWCanada

If you have a criminal conviction and you’re wondering what steps you need to take to enter Canada, then you’re not alone. Our Clients often wonder whether they should you bring a passport, a driver’s license or their social security cards?  These common questions arise because the immigration process is confusing, and learning the intricacies of the system, and how to navigate it, is a daunting task.

Thankfully, once you sift through the information, it is not as complicated as it seems. There are a few important things to know, though, if you are considering making a trip to Canada. And to answer the question, yes, you should bring your passport and driver license, but you can leave your social security card at home.

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.”

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