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Imagine you have done nothing wrong but for a minor moving violation. You have not been drinking.  You have not consumed any prescription or illegal drugs.  You tell the officer the truth.  But then you are arrested for suspicion of driving under the influence.  This was the very unfortunate circumstance for not one, not two, but three Georgia women, all arrested by the same highly credentialed, drug specific trained, experienced police officer.[1]

This was the story that Michael J. Boyle shared with a conference room full of defense attorneys and prosecutors of WHY they were all there today.  Those three women are not the only ones that end up wrongly arrested, and it is not only happening in Georgia, but in Michigan and in every other state.  The only way to protect those from wrongly arrested, and potentially wrong convicted, is to have an attorney with the experience and knowledge to know how to handle the case.

On May 12th and 13th Attorneys from across Michigan gathered in Lansing for the first ever Seminar put on in concert by the Michigan Association of OWI Attorneys (MIAOWIA) and the Marijuana Law Section (MLS) of the State Bar of Michigan.  The two-day Marijuana Criminal Law Seminar titled “Everything About Medical Marijuana in Michigan” covered a variety of current marijuana issues including Hot Topics, Search and Seizure, License Restoration, Section 4 and Section 8 Hearings, Marijuana Drug Recognition Evaluations (DRE), Chemical Testing for Marijuana, the most recent Michigan Case Law and Legislative Updates, and Marijuana and Driving in Michigan.

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If you have a concealed pistol license in Michigan, then you are free to carry your concealed weapon throughout the state.  This means you can carry a gun with you while driving on streets or freeways, including rest areas, while shopping, eating at certain restaurants while walking in fairs and fairgrounds, neighborhood BBQs, many small (non-sports) entertainment facilities and many other places.

However, there are certain areas that are strictly excluded from your right to carry.  These CPL exclusions are set forth in MCL sec. 28.425o.

CPL Exclusions:

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On July 1, 2001, Michigan’s new concealed carry law went into effect.  With this new law, Michigan effectively became a “shall issue” state, meaning everyone not otherwise excluded by law is entitled to obtain a license allowing them to carry a concealed weapon.

To obtain a concealed pistol license or CPL, you must file an application with the county clerk where you reside. The Concealed pistol license application can be download here or on the state police website, but should not be signed until you file it.  You will then be placed under oath by the clerk, after which you will sign your application in their presence.  A $100.00 filing fee is due at this time.  Additionally, you must have your fingerprints taken, and there is an additional $15.00 fee for this service.  Your application is not complete until your fingerprints are taken.  In most instances, the county clerk will direct you the nearby county sheriff location where your fingerprints will be taken.  Other possible locations for fingerprints include county the state police, local police agency, or other entity that provides fingerprinting services.

In addition to the application and fingerprints, you must also present a certificate indicating that you’ve attended an approved appropriate pistol safety training course or class.  These classes include information about gun safety, use of force law, and range training where you will shoot a pistol under the supervision of an instructor.

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An Oakland County Circuit Court Judge recently suppressed a DataMaster .20 evidentiary breath test result on a felony drunk driving case.  The judge suppressed the breath test because the police officer who administered the test failed to follow the laws and rules intended to assure that breath tests are reliable.  Because of the judge’s ruling, the prosecutor can no longer argue to the jury that the driver had an unlawful bodily alcohol level (UBAL).

The facts, in this case, are as follows: the driver was stopped for making an unlawful turn.  The driver had no valid driver license, smelled of alcohol and admitted drinking.  Subsequently, the driver was unable to perform to the police officer’s satisfaction on the field sobriety tasks, including the alphabet, backward count, heel to toe and horizontal gaze nystagmus.  This driver had two or more prior DUIs in his lifetime.  Based on Heidi’s law, with at least two lifetime prior DUIs, this arrest would make it a felony.  A roadside preliminary breath test indicated .123 on a “weak” sample.  Thereafter the driver was arrested for felony drunk driving.

Because this was a felony case, the driver was entitled to a probable cause hearing.  In Michigan, this is called an evidentiary hearing.  At an evidentiary hearing, the prosecutor bears the burden of proof, but only by the standard of probable cause.  This means prosecutor need only show, through witnesses and evidence, that the crime charged was probably committed.  Because of this, an evidentiary hearing is a much-abbreviated version of trial.  Nevertheless, at the evidentiary hearing, we did ask the police officer some general questions about his observation of the driver prior to the breath test. This was to set up a motion to suppress at the circuit court.

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If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial.  Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed.  So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them.  This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process.  For example, if you exercise your constitutional right to remain silent, this should not later be used against you.  However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

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A Barry County Judge has indicated that he’s going to start cracking down on repeat drunk drivers by giving them a minimum of 30 days in jail.

Judge Michael Shipper was appointed by Governor Snyder in 2011 and is already tough on first-time offenders.  Now he says he’s ready to be even tougher on repeat drunk drivers.  He’s indicated that the 30-day sentences could be spread out over 15 weekends.

In Michigan, a second offense drunk driving charge is appropriate only where the offender has a prior offense within the prior 7 years.  If the prior offense is more than seven years old the new offense will be considered a first offense.  However, the same is not true for those drivers with two prior drunk driving offenses on their record.  Michigan has a lifetime look back for drivers with three or more total drunk driving convictions.  These drivers are considered felons and may face up to five years in prison.

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Sean Spicer, Trump’s press secretary, stated recently Trump’s AG Jeff Sessions will do more to enforce federal marijuana laws.  He particularly has his eyes on recreational use. This appears to be a significant change from the AG and the DOJ under former President Obama.  Specifically, Spicer said that Trump would be taking legal action against states that have legalized recreational use.

It appears that Trump takes a different view relative to the use of medical marijuana.  If this is true, then States like Michigan will be free to pursue regulations allowing the cultivation, use and sale of medical marijuana.  Because Michigan’s new Medical Marijuana Licensed Facilities Act sets forth an appropriate regulatory scheme, it is unlikely that the new AG will take legal action in Michigan.  The same may not be true of states with a less developed regulatory scheme.

The prior administration took a relatively hand’s off approach to marijuana, allowing states to pass laws making either medical or recreational marijuana use legal.  Trump recently indicated he would allow States to be more autonomous in certain areas, such as the transgender bathroom issue in public schools.  Trump’s position on marijuana contradicts this approach.

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Because Marijuana remains an illegal schedule one drug in Michigan, any patient or caregiver who does not closely comply with the Medical Medical Marijuana Act (MMMA) risks being charged and prosecuted as an ordinary illegal drug user or illegal drug dealer.  A new Michigan case entitled People v. Lewis, involves medical marijuana, and demonstrates exactly why this is true.

In this case, the defendant was charged with multiple counts of delivering marijuana, MCL 333.7401(2)(D)(iii). The defendant was charged as a common drug dealer, even though he thought he followed Michigan’s medical marijuana act.

Here the defendant was an employee at an Ingham County Michigan dispensary/provisioning center through which patrons could purchase medical marijuana. Undercover police officers visited the center and purchased marijuana from defendant simply by filling out an application. No officer presented a medical-marijuana card, and the defendant was not registered with the state as the officers’ caregiver.

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President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing.  Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab.  Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President.  The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

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If you were arrested for drunk driving in Michigan, then you should talk to your lawyer about whether starting with a structured 12-step program such Alcoholics Anonymous, or AA, may help your case. While clearly the best known, AA is not the only 12-step program, and it may not be the best option for you.

Understanding 12-Step Programs:

A 12-step program is a structured support system designed to aid individuals in overcoming addiction, fostering personal development, and maintaining sobriety. Core principles include acknowledging powerlessness over the substance, seeking guidance from a higher power (interpreted personally), making amends, and supporting others in their recovery journey.

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Contact Information
280 N Old Woodward Ave #200
Birmingham, MI 48009
Phone: 248-306-9158
2155 Butterfield Dr #305A
Troy, MI 48084
Phone: 248-306-9158
39 S Main St #20
Clarkston, MI 48346
Phone: 248-306-9158
The Federal Eastern District Court for Michigan has courthouses located in Ann Arbor, Flint, Port Huron, and Bay City, whereas the Western District Court also has courthouses located in Lansing, Kalamazoo, and Marquette in Michigan's Upper Peninsula. View More

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