Michigan Criminal Defense Law Blog

Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

Published on: July 18, 2018 | by Patrick Barone

Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

If you have been charged with a second offense drunk driving case in Michigan, then you are probably wondering about how severely you will be punished. The type of punishment will be based on both criminal enhancement and driver license enhancement. Before discussing these differences, the first thing to know is about the two is that the judge will decide your punishment whereas the Michigan Secretary of State will decide your driver license sanction.

With that in mind, let’s first look at criminal enhancement. The Michigan look-back period for second offense drunk driving is 7-years. This means that a new DUI arrest occurring within 7- years after a prior DUI will be considered a second offense drunk driving. The look-back period for criminal enhancement runs from date of conviction to date of arrest.

In this context enhanced means, the statute provides for the possibility of more jail time. For example, for a first offense DUI the maximum jail time is 93 days with no minimum period of incarceration. However, in the case of a second offense drunk driving, Michigan Compiled Laws § 257.625 provides as follows:

What is Michigan’s Under 21 Zero Tolerance Law?

Published on: July 17, 2018 | by Patrick Barone

What is Michigan’s Under 21 Zero Tolerance Law?

You are a drunk driver if you are under 21 years of age in Michigan, drink any amount of alcohol and then drive a car. This is called the Michigan zero-tolerance drunk driving law. To fully understand this law, it is important to know how “any amount of alcohol” is defined. Michigan’s Compiled Laws 257.625(6)(a) and (b) provide as follows:

As used in this subsection, “any bodily alcohol content” (BAC) means either having an alcohol content of 0.02 grams or more but less than 0.08 grams or having the presence of any alcohol within a person’s body resulting from the consumption of alcoholic liquor.

If you are under 21 years of age, and have an alcohol content of .08 or more, then you will be charged with an “adult” drunk driving, which carries greater punishments and a more draconian driver license sanction.

Can I Legally Use Marijuana in Canada then Drive Home to Michigan?

Published on: June 27, 2018 | by Patrick Barone

Can I Legally Use Marijuana in Canada then Drive Home to Michigan?

No. Using Marijuana lawfully in Canada puts you at risk of an intoxicated driving charge in Michigan. This is true even though Canada recently passed new federal laws effectively making it legal to possess and use marijuana. Nevertheless, this new Canadian law may have an impact on how intoxicated driving laws are enforced here in Michigan. To understand why it’s helpful to briefly summarize Michigan’s drugged driving laws.

Until marijuana is also legalized for recreational use, Michigan’s intoxicated driving laws distinguish between the lawful and the unlawful use of marijuana. For people who can lawfully use medical marijuana, the police and prosecutor must show that the marijuana lawfully consumed substantially lessened the ability to operate the motor vehicle. In these circumstances, the police and prosecutor will rely on the driving observed and the roadside behavior of the motorist, including the performance on any field sobriety tasks, administered. Sometimes a blood test result showing a high level of THC in the blood will also be used to bolster their evidence of intoxication. If the jury believes that all of this evidence shows that the driver was intoxicated, then a conviction for OWI or Operating While Intoxicated will follow.

This level and type of proof are much different for the unlawful use of marijuana where the prosecutor need only show that at the time of driving the accused had any amount of THC in their blood. This is a zero-tolerance crime, meaning that the prosecutor is relieved of any burden to show intoxication. Simply having the THC in the bloodstream at the time of operation is sufficient.

How Much Will a DUI Lawyer Cost?

Published on: June 26, 2018 | by Patrick Barone

How Much Will a DUI Lawyer Cost?

There is at least a ten-fold difference in the amounts Michigan lawyers charge to handle a first offense drunk driving case. Fees usually start at around $1,500.00 for a newer less experienced lawyer. From there, fees increase to as much as $15,000 – $25,000.00, including trial, for a top DUI lawyer. Where death or serious injury is involved, fees can be even higher.

With such a wide range of fees you may wonder if it is worth spending more to hire a great lawyer? For some people the answer is clearly yes while for others the answer is more elusive. Either way, it’s a personal decision that depends on many factors. Before making the investment in a top DUI lawyer, you may wish to consider the following questions:

Is the Lawyer Available to Answer my Questions? If you’re spending a lot of money for a lawyer then you should expect plenty of communication. Facing a criminal charge can make you feel like you are standing on the edge of an abyss staring into the great chasm of the great unknown. Your attorney will be your guide helping to bring order into the chaos you are facing. Consequently, when needed, you should have an easy ability to contact your lawyer without delay or hassle. No lawyer is going to be forever available, and consideration should be given for time spent in court and handling other client’s cases. Nevertheless, you should expect to be in contact within a reasonable amount of time under most circumstances. A good way to determine if the lawyer you’re considering will be good with communication after you’ve paid them is to start paying attention from the first time you contact the Firm. You will begin to get a feel of how important communication is to the lawyers and staff involved. Consider such things as whether a person answers the phone, or it goes to voicemail; does your attorney provide a cell phone number to call or text; how much time does it takes for someone to get back to you for an initial consultation; how much time does the attorney give you in the initial consultation, before you’ve even paid them. If communication seems labored or difficult, then this is a warning sign that will lead to an increase in stress as your case moves through the system.

Can I Refuse Police Officer DUI/OWI Tests?

Published on: June 8, 2018 | by Patrick Barone

Can I Refuse Police Officer DUI/OWI Tests?

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

Police Caught Falsifying More Than a Quarter Million Breath Tests

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

Study Shows Legally Drunk People are More Creative

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 bond conditions in an OWI case prohibit you from consuming illegal drugs including pills.

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

Amish Man on Horse Drawn Buggy Arrested for Drunk Driving

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 Position on Cannabidiol, CBD and Industrial Hemp Products

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.