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According to Michigan Compiled Laws 767.24, the Statute of Limitations for a drunk driving case in Michigan is 6 years.  However, under certain circumstances this time period can be extended.  Also, although the limitations period is 6 years, according to Michigan case law, prejudice is presumed after only 18 months.  This means if your drunk driving case is brought just 18 months after you are arrested, then it might sometimes be dismissed.  This speedy trial issue is discussed in more detail below.

Relative to the statute of limitations, the most important date is the date of the arrest because this is the date used to start calculating the applicable time period.  In other words, the “clock” runs from the date of the arrest to the time the charges are brought, either by the issuing of the ticket or the complaint. This is true even though the statute of limitations uses the word “indictment.”  You do not necessarily have to know about the indictment, the prosecutor need only file it within the limitations period.

Also, if you are from out of state, or move out of state during the running of the limitations period, then the limitations might be “tolled” meaning paused.  This means if you are arrested on January 1, 2017, then leave the state to take a new job on January 2, 2017, the statute of limitations won’t start to run again until you return to the state.  Consequently, if you came back to the state of Michigan to retire on January 1, 2030, the prosecutor would have until December 31, 2037 to file the indictment/information with the court. This is because section 8 of the Statute reads as follows:

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If you have been arrested for a first offense drunk driving in Michigan, then you are not prohibited in any way from buying, selling or leasing a car.  However, if you have been arrested for a second offense drunk driving, then things get a bit trickier.

In 1999, the Michigan drunk driving set forth at Michigan Complied Laws 257.625 et. seq., changed substantially.  Part of these changes included license plate confiscation for people arrested for a second offense within seven years, or a third offense within a lifetime.[i]  The police replace the metal license plate with a temporary paper plate that is valid, under statute, until the charges against the person are dismissed, the person pleads guilty or nolo contendere to those charges, or the person is found guilty of or is acquitted of those charges.[ii]

These procedures bring up a whole host of potential issues including what happens if you want to sell your car, or turn in your lease, and what happens if you want to buy a new car?

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What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4th amendment to the Constitution which provides as follows:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

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If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed.  That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived.  The police did this because consent is an exception to the Fourth Amendment search warrant requirement.  In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet.  This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given.  Her consent was for the limited purpose of uncovering drugs.  Thus, the wallet, keys and phone were not lawfully seized by the police.

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The Barone Defense Firm is pleased to announce that Patrick Barone has authored a chapter in the soon to be published 2016-2017 edition of “Legality of Search and Seizure in DUI Cases.”  The title of Mr. Barone’s chapter is “Developing Essential Trial Skills for Defending DUI Cases.’ This new book from Aspatore’s “Inside the Minds” series will be available for purchase within the next few weeks.

Aspatore books is a division of Thomson Reuters publishing, one of the Nation’s largest publishers of law books.  According to the publisher, the “Inside the Minds” series brings together leading executives and lawyers from around the world. Relative to law, the Inside the Minds series has published chapters written by the Chairs and/or Managing Partners from over 75% of the Nation’s top 200 law firms.

Mr. Barone’ Chapter includes the following sections:

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If you are charged with a felony in Michigan, and have another felony conviction anywhere in the country, then the state will file a habitual notice to seek an enhanced sentence.  In other words, if you have a prior felony conviction then the state will attempt to have that used against you at sentencing.

Basically, the way it works is this; felony cases in Michigan start at the district court.  After the preliminary hearing is either held or waived, the case is sent to or “bound over” to the circuit court.  The first thing that happens at the circuit court is the arraignment.  If you have another felony conviction, then at the circuit court arraignment your attorney will be provided with a habitual notice.  The purpose of the notice is to let you know that the maximum sentence on your charge will be raised depending on the number of your prior felony convictions.  You can be a habitual second or third and so forth, all the way up to fourth.  No matter how many priors you have, the habitual can only go up to fourth.

Each time your habitual goes up, the underlying maximum sentence goes up with it.  So, for a second habitual offense the maximum sentence is raised to one and half times the underlying maximum.  Here’s how it works; let’s say you are charged with a five-year felony, like a drunk driving third offense.  If you have a prior felony, then the maximum possible sentence is not five years but seven and a half years.

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In Michigan, a charge of drunk driving causing death is punishable by up to 15 years in prison.  This possible sentence is set forth in Michigan Complied Laws 257.625(4)(a).  In determining exactly what sentence to impose for an individual case a judge will be looking at many factors, including the Michigan Sentencing Guidelines.

A recent case dealing with this issue is People v. Taylor.  In this particular case the defendant Taylor was found guilty of drunk driving causing death. The facts were that Taylor admitted drinking, then while driving a car killed a person on a bicycle.  He failed field sobriety tests and was over the legal limit.

The sentencing guideline range was 29 – 57 months.  Taylor’s defense attorney filed a sentencing memorandum where he requested a downward departure from these guidelines.  He argued that there were substantial and compelling reasons to do so, including his lack of criminal history, education, employment history, remorse and many other factors.  The prosecutor, of course, argued that none of this mattered.

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Even before you are arrested, the police in Michigan can often conduct a search of your breath using a portable or preliminary breath test device.  The purpose of these tests is to determine how much alcohol is in your body.  However, these portable breath testers have significant limitations relative to the reliability of the results reported.  This is because of the way these portable breath testers measure alcohol. Because these limitations are well recognized in the scientific community, the law usually precludes them from being entered into evidence.

For example, in drunk driving cases, results from breath tests taken at the roadside are generally inadmissible.  There are exceptions making preliminary breath test results admissible into evidence, and these are set for in Michigan Compiled Laws sec. 257.625a(2)(b).

However, these exceptions may not apply to other types of criminal activity in Michigan.  For example, preliminary breath tests would be admissible on the charge of Possession of a Firearm Under the Influence, a crime set forth in Michigan Compiled Laws sec. 750.237.

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Prosecutors are loath to dismiss or reduce drunk driving cases in Michigan. This is because so many people watch DUI cases so closely, everyone from MADD to the Michigan State Police watch and track what happens to each and every person arrested for intoxicated driving in Michigan. If a prosecutor gives a non-alcohol reduction or even dismisses a case, they usually will have a pretty darn good reason for doing it.

That’s where good lawyering comes into play. A case we handled recently at the Barone Defense Firm had a significant delay in prosecution, and this eventually lead to us being able to make a deal whereby the accused drunk driver plead guilty to a careless driving as well as a disorderly person, which was taken under advisement and will be removed from this client’s record after probation. The original charge of OWI was dismissed.

The facts of this case were not good. The accused was involved in a two car accident. The dispatch indicated that she was trying to leave the area. When police arrived they noted (in the written report) a “strong odor of intoxicatingly liquor emanating from her person.”

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According to the Michigan Court of Appeals, Facebook postings are admissible as evidence against a person accused of a crime in Michigan.  In a recent case involving assault with intent to commit murder, felony firearm and other charges, the prosecutor found and presented to the jury evidence obtained from the defendant’s Facebook page.  The defendant objected, and the Court of Appeals opinion says this:

Defendant contends that the trial court abused its discretion when it admitted a Facebook posting into evidence without sufficient foundation. At issue is a page purportedly from defendant’s Facebook page on which is a picture of McKinley, the initials “RIP,” and a post reading, “Shuldd I let em kill me or turn myself ndd. I’m facing life nd da gtt dam pin…rest -6- in peace Ne-Ne, catch me nd traffic.”

The defendant also objected to admission of gang-related photographs also obtained from Facebook.

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