Michigan Criminal Defense Lawyer Blog

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.

Police Caught Falsifying More Than a Quarter Million Breath Tests

Published on: June 7, 2018 | by Patrick Barone

Victoria Police was caught falsifying more than a quarter million roadside breath tests over a five-year period. The claim is that the officers did this to meet quotas or to highlight their productivity. At the end of the month, when quotas had not been met, officers would set up ad-hoc roadblocks to test motorist’s breath or make as many traffic stops as possible. Another option for police officers was to fake a series of tests. They would do this one of three ways, either by blowing into the handheld roadside breath testing unit (PBT) themselves, holding the unit outside a window of a moving car, or even simply placing a finger or thumb over the inlet to “trick” the PBT into believing a breath sample was being received. The claim is that none of the fake tests were involved in any drunk driving arrests and that the results of such fake tests were not used in court.

A spokesperson for the Victoria Police claimed that they do not set quotas for officers. They acknowledged however that local managers may set their own targets. The police union claims all this faking occurred due to overly demanding workloads and expectations. In some instances, police were expected to collect as many as 50 breath samples in a single shift.

The Independent Broad-based Anti-Corruption Commission (IBAC) had a part in uncovering this and other abuses with Victoria Police and expressed deep concern that Victoria Police had developed a culture where such abuses were not only commonplace but unofficially sanctioned.

Study Shows Legally Drunk People are More Creative

Published on: June 6, 2018 | by Patrick Barone

A study out of the Mississippi State University suggests that people with bodily alcohol levels at or near the legal limit are actually more creative. According to a 2018 article in the Harvard Business Review, test subjects who imbibed in alcohol were able to give more correct answers to word problems and also were able to arrive at their solutions more quickly. An example of a word problem might be: duck, dollar, fold. The correct answer was “bill.” Another example would be “peach, arm, tar,” with the correct answer being “pit.”

The study consisted of researchers giving subjects 3 vodka drinks and then testing their breath using a portable breath testing device. Once the subjects got to a .075, they were given a 15-question word association test. Drinking subjects were able to arrive at correct answers more frequently and more quickly than their non-drinking counterparts. They also believed that their answers came as a sudden insight, like a light bulb going off above their heads. This is the kind of insight that an advertising executive might need to think outside the box., which might explain Don Draper’s drinking habits.

According to Psychology Today, the results of this study might be explained by brain science. It appears that alcohol reduces a person’s working memory and focus. These two work in unison to assure that we are able to filter out unnecessary information, and focus on what we think is important. Alcohol tends to reduce these abilities and so there appears to be a benefit in the drinker’s ability to engage in creative problem-solving.

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.

Michigan’s Position on Cannabidiol, CBD and Industrial Hemp Products

Published on: May 14, 2018 | by Patrick Barone

Michigan’s Michigan Medical Marihuana Act (MMMA), and the Medical Marihuana Facilities Licensing Act (MMFLA) both contain a series of new laws that are subject to interpretation. As medical marijuana licensing continues, LARA (Department of Licensing and Regulatory Affairs) periodically issues opinions on various matters requiring such interpretation, and recently this included the issue of CBD.

It is the opinion of LARA that the possession, purchase, or sale of CBD must be done in compliance with the MMMA and MMFLA. This means CBD can only be purchased, used or possessed by Michigan medical marijuana licensees.

By way of background LARA advisory suggests that the cannabis plant has over 100 cannabinoids and included among them is CBD. These cannabinoids are found primarily in the flowering tops, resin, and leaves of the cannabis plant. However, CBD is found in only trace amounts within the seeds or the mature stalks.

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:

Michigan CPL Applications Likely to Reach One Million in 2018

Published on: May 4, 2018 | by Patrick Barone

The number of Michigan citizens with a Concealed Pistol License (CPL) continues to increase each year with 2018 on track to become a recording breaking year. As of April 2018, there are a total of 993,026 CPL holders in Michigan according to police CPL records. The current pace of new applicants suggests that the number will exceed one million CPL holders later this year.

The number of Michigan CPL holders continues to increase year-over-year, and one reason is that Michigan became a CPL “shall-issue” state in 2001. Then, in 2015, Michigan County Clerk offices and the Michigan State Police became responsible for processing concealed weapon applications under Senate Bills 34 and 35 or Public Acts 3 and 4. This important change in Michigan’s CPL law did away with gun boards that included county sheriffs and prosecutors. With this change Michigan became a true shall issue state because now all applicants are approved provided they meet the statutory guidelines. One final change in 2015 included a reduction in processing time. Under Michigan’s CPL law, applications are to be processed within 45 days and if the paperwork isn’t processed within the 45-day-period applicants can use their application receipts received by the clerk’s office as proof of certification. However, applicants usually receive their CPLs in a much shorter time, often within a couple weeks.

Because Michigan is a shall issue state, provided an individual takes a one-day class, pays the application and fingerprint fee, and can pass a background check, they shall be given a CPL. Once a valid CPL is obtained, it remains valid for five years, and the CPL holder can lawfully carry a concealed pistol anywhere not otherwise precluded by law. These so-called gun free zones include such things as sports arenas, schools, courts, post offices, banks, places of worship, day care centers, etc. The State is required to create an on-line CPL renewal process by October 2018.

Oakland County Work Release Not Open to Felony Drunk Drivers

Published on: April 11, 2018 | by Patrick Barone

Because an at-home electronic-monitoring program is not incarceration, the Oakland County Michigan work release program is not open to some felony offenders. Where mandatory incarceration is concerned, the tether program is a restriction, not a confinement, and is not ‘jail’ as that term is commonly used and understood.

In 2010 the Oakland County Jail adopted a “virtual” work release program which employs a GPS tether that tracks the whereabouts of an individual and allows them to leave their home for certain court-approved reasons, including employment. These whereabouts are monitored and tracked by the Oakland County Sheriff. The Michigan drunk driving felony statute, found at Michigan Compiled Laws § 257.625 requires that offenders serve a minimum of 30 days in jail. Specifically, the law indicates:

A person who violates this Michigan’s drunk driving laws three times in their lifetime is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following: Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years or probation with imprisonment in the county jail for not less than 30 days or more than 1 year. This term of imprisonment shall not be suspended.

Michigan Criminal Defense Law Blog

Michigan OWI Bond Conditions