Michigan Criminal Defense Law Blog

What’s the Difference Between Impairment and Intoxication?

Published on: May 11, 2018 | by Patrick Barone

What’s the Difference Between Impairment and Intoxication?

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

When Will Michigan Have a .05 Legal Limit for Drunk Driving?

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

Michigan CPL Applications Likely to Reach One Million in 2018

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

Oakland County Work Release Not Open to Felony Drunk Drivers

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.

Oakland County Jail’s Virtual Work Release Program

Published on: April 11, 2018 | by Patrick Barone

Oakland County Jail’s Virtual Work Release Program

Beginning in early February 2010, “virtual” work release is available for some offenders. After the new program starts, the traditional work release program will be eliminated. This significant change has the potential to impact criminal law sentence negotiation and overall sentencing practices throughout Oakland County.

Virtual work release will consist of an ankle tether using a satellite and radio global positioning system (GPS) monitored by the Oakland County Sheriff. It will give the Sheriff’s Office the ability to carefully track an inmate’s location twenty-four hours a day, seven days a week. The radio technology will even allow a defendant to be tracked inside a home or workplace.

The eligibility for the new program has not changed. Accordingly, a judge must authorize participation prior to enrollment in the virtual work release program and offenders sentenced on any CSC charge are not eligible. Also, there may be no outstanding warrants, holds, or unpaid bonds.

Criminal Consequences of Statue Vandalism in Michigan

Published on: March 31, 2018 | by Patrick Barone

Criminal Consequences of Statue Vandalism in Michigan

Many people view vandalism as a youthful indiscretion. The Sparty statue on the grounds of Michigan State University is the target of vandalism nearly every year during rivalry week. And in 2015, so was the Magic Johnson statue on the school’s grounds.

But while these may seem like harmless pranks by the college kids involved, Michigan has also seen its fair share of hate vandalism. One example is when someone painted offensive, derogatory remarks on a statue outside of Muskegon High School.

And this type of vandalism, along with the seemingly harmless pranks, can have offenders facing fairly serious consequences under Michigan’s willful and malicious destruction of property laws.

Legality of Recording Police Officers in Michigan

Published on: March 31, 2018 | by Patrick Barone

Legality of Recording Police Officers in Michigan

Recent stories of police misconduct have led to many citizens recording police activity. They often do so to prove the police officer acted inappropriately. But is it legal?

The short answer is yes, but it depends on where the conversation or activity is taking place. In Michigan, there are two laws that deal with the recording of any conversation or activity, even those involving the police. The first is a wiretapping law stating it is illegal to willfully or maliciously wiretap an electronic device including a smartphone or computer to record activity or a conversation. This is a felony that carries a sentence of up to two years in prison and/or a fine of $1,000 but it is not the type of recording most people consider when they record the police.

These situations typically include videotaping or recording a police officer dealing with a member of the public. And this would fall under Michigan’s eavesdropping law. Under this law it is illegal for any person to record a private conversation or use a device that can help them listen in on a private conversation taking place between other people. This is also a felony that could carry a sentence of up to two years in prison, and/or a fine of $2,000. But the key word within this statute is private.

What are the Mandatory and Permissive Terms and Conditions of Probation in Michigan?

Published on: March 23, 2018 | by Patrick Barone

When thinking about the mandatory terms and conditions of probation it’s important to first understand that, according to Michigan Compiled Laws, section 771.4, the granting of probation is a matter of grace. In other words, probation is a privilege, not a right.

Furthermore, this legislative idea of probation being a matter “grace” extended to you by the court is further expressed in Michigan Compiled Laws, section 771.1, which indicates that to be placed on probation, the court must first determine that you are not likely to again engage in any offensive or criminal conduct. Additionally, the court must believe that the public good does not require that you “suffer the penalty imposed by law,” meaning the public good does not require the court to sentence you to jail or prison.

If you are “lucky” enough to be given a term of probation, Michigan Compiled Laws 771.3 sets forth all of the mandatory conditions of probation. This list includes the following:

Man Wrongfully Arrested for DUI in Police Cover-Up Awarded Almost a Million Dollars

Published on: March 19, 2018 | by Patrick Barone

Man Wrongfully Arrested for DUI in Police Cover-Up Awarded Almost a Million Dollars

According to articles reported in the NY Daily News, in April 2015, Oliver Wiggins was struck by a police cruiser that had run a red light. Instead of offering Mr. Wiggins an apology, however, Brooklyn Police arrested him for drunk driving! A breath test later revealed that Wiggins had consumed no alcohol, and the EMT and DWI technician involved in the arrest both indicated that Mr. Wiggins showed no signs of intoxication. Despite this, the official narrative police report, prepared by City of Brooklyn Police Officer Justin Joseph, indicated that Mr. Wiggins had red watery eyes, slurred speech, an odor of alcohol on his breath and was swaying. Mr. Wiggins, a native of Jamaica, claims all of this was false and was only part of an effort by Officer Joseph to cover up for his own wrongdoing!

The prosecuting attorney eventually dismissed the charges against Mr. Wiggins, but Mr. Wiggins still lost his license and had a large repair bill on his car. His insurance company refused to cover the accident because of the DUI arrest. Additionally, Mr. Wiggins’ lawyer claimed that he suffered an injury to his wrist.

Because of the wrongful arrest, Mr. Wiggins hired a lawyer to sue the City. Later, and ostensibly and euphemistically to only “avoid trial,” The City of Brooklyn paid out nearly One Million Dollars in damages! The worst part of all this is that the officers involved in this egregious abuse of power are still out there on the street making arrests. They have not lost their jobs nor have any charges been filed against them.

Can my Spouse Keep Their Guns If I’m on Felony Probation?

Published on: February 22, 2018 | by Patrick Barone

Can my Spouse Keep Their Guns If I’m on Felony Probation?

Probably not. If you’ve been convicted of a felony in Michigan, then your gun rights will be suspended for three to five years, depending on the type of felony. The suspension time periods start when you’re done with your felony probation and it is also likely that the sentencing Judge addressed this issue at the time you were sentenced and made the non-possession of firearms an explicit condition of probation. For a more detailed explanation, let’s look at what the law provides.

The law that covers this issue is found at Michigan Compiled Laws § 750.224f, which provides as follows:

A person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all the following circumstances exist: (a) The person has paid all fines imposed for the violation. (b) The person has served all terms of imprisonment imposed for the violation. (c) The person has successfully completed all conditions of probation or parole imposed for the violation.