Michigan Democratic Lawmaker Charged with Second Drunk Driving

A recent news report outlines some of the circumstances surrounding the arrest of Michigan Democratic state Rep. Mary Cavanagh of Redford, and as true with many media outlet stories it seeks more shock than substance.  To help elaborate on substance, and dispel some myths and misunderstandings about drunk driving laws, this article addresses the following three topic:

1. A second DUI arrest does not necessarily mean enhanced DUI penalties, driver license sanctions or conviction,
2. Being unable to stand on one leg is only a part of standard field sobriety tests, and;
3. A .176 breath test was a preliminary breath test (PBT) or roadside test is not admissible evidence.

When a Second Offense Drunk Driving is not a Second Offense Drunk Driving?

In Michigan, a second DUI offense may be charged if the arrest or incident occurs within 7 years of a previous conviction for intoxicated driving, commonly referred to as a drunk or drugged driving. These prior offense may include Operating While Visibly Impaired (OWVI or Impaired), Operating While Intoxicated (OWI), or OWI High Blood Alcohol Content of .17 or more (High BAC, HiBac or super drunk driving).  However, the Secretary of State will impose second offense license sanctions only if the conviction occurs within 7 years of a previous conviction. With the exclusion of the super drunk offense, which only applies to alcohol, the other DUI/OWI offenses can be based on the consumption of drugs, alcohol or a combination of both. This includes marijuana.

Michigan’s court system is separate but related to Michigan’s Secretary of State (SOS) system, but each serves a different role in the potential penalties and punishment for an individual that is convicted.  The Court imposes punishment to the individual regarding fines, jail, probation, but the SOS imposes the sanctions for driving privileges.

For example, a first DUI offense may include an OWVI, or an OWI, or a High BAC.  An Impaired carries up to a $300 fine, an OWI is up to $500 fine, and High BAC is up to $700 fine.  An Impaired and OWI are up to 93 days in jail, and a High BAC is up to 180 days in jail.  All of them may also include probation up to 24 months, community service, and rehabilitative services.  However, the Court does not impose any license sanctions.  If convicted, an electronic abstract is submitted to the Secretary of State who will then impose the appropriate license sanction based upon the driver’s master driving record.  An Impaired would be a 90-day restricted license, wherein the driver may drive to/from/during the course of their employment, counseling, serious medical, and court requirements.  If an OWI, then they would receive a 30-day suspension (no driving) followed by 150 days restricted. And a High BAC would cause a 45-day suspension followed by 320 days restricted, but would also require an Breath Alcohol Ignition Interlock Device (BAIID).

If it is a 2^nd offense then the penalties for an Impaired, OWI, or High BAC, are all enhanced to maximum fine of $1000.00, and up to 1 year in jail, and a minimum of 5 days of jail to be served with at least 48 hours consecutively. For this enhancement to apply, the arrest for the second offense must occur not more than years after the date of the conviction for the prior OWI/DUI offense. If it’s been more than 7 years, then the judge can still enhance the penalty for the new offense, but the maximum period of incarceration can’t exceed the max on the first offense, which is never more than 180 days as opposed to up to one year for a “true” second offense.

However, the sanctions from the Secretary of State on driving privileges will be determined based upon a conviction date of the prior offense, and the instant offense.  Unlike sentence enhancement, driver license enhancement runs from date of conviction to date of conviction. If the convictions were within 7 years, then the license would be revoked, which means no driving privileges until reinstated by the Michigan Driver’s License Appeal Division for reinstatement, and further, not eligible for any restricted license unless enrolled in a sobriety court program.

Therefore, although this article references that this is the Representative’s 2^nd arrest with a prior from 2015 it is necessary to know the date of the prior conviction to determine whether she can be charged with a 2^nd offense, and whether she potentially faces a revocation or sanctions reflective a first offense. However, this appears to be a case where the Representative has been arrested for a second drunk driving but won’t be charged with a second offense drunk driving.

Nevertheless, it is common that judge’s impose sentences that a reflective of a 2^nd offense even if it is legally a 1^st offense when there is a prior outside of 7 years.

Unable to Stand on One Leg!

This certainly attracts readers attention, and it has some factual accuracy, but it is important to understand the significance of the one leg stand and standard field sobriety tests (SFST).  The One Leg Stand (OLS) is one of three standard field sobriety tests that also include the Walk and Turn or Heel to Toe, and the Horizontal Gaze Nystagmus.

National Highway Traffic Safety Administration (NHTSA) is the backing behind the alleged reliability of the SFSTs, which are commonly used in every drunk driving investigation.  For the One Leg Stand there are 4 common indicators or clues associated with this test, which include putting foot down, using arms for balance (more than 6 inches from the body), hopping, and swaying. In addition, if a subject places their foot down three times it is considered a failed test. Otherwise, two or more clues are considered a failed test.  A failed test is purported to be consistent with a subject that is above a .08 (or .10 under the original studies).

First, an officer is required to inquire whether the subject has any health or medical issues, any issues with their knees, back, or inner ear problems.  If sufficiently healthy the officer will instruct the subject in a standardized way consistent with NHTSA, and second, must demonstrate in a standard method.  Then must evaluate the subject under the standard protocol.  Failure to follow the standard procedures compromises the accuracy and reliability of the results.  However, there are other factors that influence the test which include whether the subject is 50 pounds over-weight, or above 65 years old, or inner ear problems, or the shoes they may be wearing.  Overall, the studies and NHTSA purport that if 2 or more clues are present then there is 65% accuracy that the individual is above the legal limit.

Is the PBT admissible?

No, but there are exceptions.  The report notes that the Democratic Representative had a .176 breath test, and then had a .20 breath test at the station.  The .176 was a PBT, which stands for “preliminary breath test” also called a roadside breath test. A PBT is most often a fuel cell handheld breathalyzer that officers use to collect evidence at the scene to support probable cause for an arrest.  However, the PBT and the results of the PBT are not admissible at trial, unless it falls within one of the limited exceptions.  For example, if the defense argues that the actual BAC level was lower at the time of the driving than when the test was submitted (at the jail or station) the prosecutor may be permitted to admit the PBT as rebuttal evidence.  But in most circumstances, the PBT results are limited to proving whether or not there was sufficient probable cause to arrest a suspected intoxicated or impaired driver.  Therefore, although the .176 is reported in media article it would not be considered by a judge or jury as evidence of intoxication at trial.

Provided the prosecutor can successfully lay a foundation, the .20 at the station will be used as evidence.  This test result is from a DMT Datamaster, which most courts consider to be reliable and accurate, and therefore, if it sufficiently proven to be in good working condition, the result will be admitted as evidence.

Therefore, we would conclude that the Representative from Redford will be charged with a High BAC as 1^st offense, unless her conviction in 2015 occurred within 7 years of this arrest which would permit 2^nd offense charges.

If you are charged with driving under the influence or impaired by alcohol or controlled substances, contact the Top Rated Drunk Driving Lawyers at the Barone Defense Firm for a consultation on how we may be able to assist you in winning your life back.