OWI Cases In Michigan
In Michigan, the drunk driving statute is referred to as an OWI (Operating While Intoxicated). The lesser offense in Michigan is known as OWVI (Operating While Visibly Impaired). This includes using alcohol, drugs, or any other intoxicating substance which affects a person’s ability to operate a motor vehicle safely.
Michigan has a blood alcohol content threshold of 0.08, and if a driver is at or above that level, then there is a presumption that they are intoxicated. It’s not the end of the inquiry, but it is certainly a significant factor in any prosecution. Michigan does not have a threshold for operating while visibly impaired; it could be 0.07, or just 0.02. A driver can be charged if the police and prosecutor believe that they can prove the ability to drive was impaired by alcohol or drugs. With each passing year, prosecutors in Michigan are increasingly willing to charge people who have lower and lower blood alcohol levels with impaired driving.
A first-time charge of drunk driving is a misdemeanor in Michigan, punishable by 93 days in jail. A second-time offense is a misdemeanor punishable by 180 days in jail, and a third-time offense is a felony.
The loss of the driver’s license is not a penalty imposed by a judge, but is imposed automatically by the Secretary of State, so there is no defense to the loss of the driver’s license. Even if a judge wanted to negate the license suspension, they are not able to do so, as the suspension is administratively imposed by the Secretary of State.
For a first-time OWI, there is a 180-day license suspension. For 30 of those days, it is a hard suspension, which means the person cannot drive for any reason at all. After that, there are five months of restricted driving, meaning the person can drive to work, school, court, etc. Operating while visibly impaired carries with it a 90-day restricted license, with no hard suspension. So, the main difference between operating while intoxicated and operating while visibly impaired is that with the latter, the person never loses their ability to drive; they will have a restricted license for the entire 90-day period.
Two drunk driving offenses within seven years results in the revocation of the person’s driver’s license by the Secretary of State. Since it is revoked rather than suspended, it is as though the individual never even had a driver’s license, so they will have to start from the beginning in obtaining one. In addition, they will have to wait a minimum of one year before applying for a license with the Driver License Appeal Division of the Secretary of State (DLAD). The DLAD makes it very difficult for people to obtain their driver’s license.
There are no sentencing guidelines for first- or second-time drunk driving charges in Michigan, because they are misdemeanors. However, sentencing for these offenses is becoming more and more harsh, and many District Court judges in Michigan imposed jail time for even first time convicted drunk drivers. In addition, due to the power of Mothers Against Drunk Driving, Michigan’s drunk-driving convictions remain on the person’s record for the rest of their life; they will not be eligible for expungement or removal of the conviction from their record. However, there was a bill introduced recently to allow drunk driving cases to be subject to expungement, and it may soon become law. It was vetoed by Michigan’s Governor last week, but it appears as if Michigan’s legislature has the votes to override that veto. Stay tuned as developments may happen.
To successfully prosecute someone for operating while intoxicated, the prosecution must prove that the individual was driving while intoxicated, and that the intoxication impacted their ability to drive. This means that it is not necessary for the prosecution to prove that the person’s blood alcohol level was at or above 0.08. To successfully prosecute someone for operating while visibly impaired, they must show that the person’s driving was impaired by drugs or alcohol. So in defending these cases, It is important to do a very thorough review of all discovery. Most lawyers just get the police report, but in this day and age, there is almost always squad car and body-cam video. It is critical to obtain the video footage and review the arrest.
One of the most common defenses in a drunk driving case is a legal challenge to either the initial stop, or probable cause to arrest. This focuses on whether the initial stop of the vehicle was unlawful because it was not supported by probable cause or reasonable suspicion. If that fails, the lawyer and client must then review whether the officer had the ability to extend that detention by asking the person to get out of their vehicle and perform standardized field sobriety tests. If an officer is going to do anything other than issue someone a traffic ticket, then that officer must have probable cause or reasonable suspicion for further detention of that individual.
There are three common field sobriety tests: the horizontal gaze nystagmus (HGN) test, the heel-to-toe test, and the one-legged-stand test. The HGN test involves the officer waving their finger or a pen in front of the subject to see how their eyes track. The heel-to-toe test involves asking the driver to take nine steps out, turn around, and then take nine steps back. The one-legged stand simply asks the driver to hold his leg approximately 12 inches off the ground while counting out loud.
The National Highway Traffic Safety Administration (NHTSA) has very strict guidelines in terms of how the field sobriety tests are performed. These tests need to be evaluated, and if they were not performed properly, then they are not admissible in court. These tests are administered improperly by officers almost as frequently as they are administered properly.
Improper field sobriety tests can also be the basis for challenging the driver’s arrest for lacking in probable cause. If the driver passes those field sobriety tests, then a very good argument can be made that there was no probable cause for the arrest. This is a potential third legal challenge – the first being that the police didn’t have the right to make the initial stop, and the second being that the police didn’t have a right to further detain the individual after making the stop. Layered on top of all of this is that if the field sobriety tests were not performed properly, then the results of those tests should not be used against the defendant at trial.
Finally, drunk driving charges can be successfully defended on the facts. That is, despite a blood alcohol level at .08 or above, the squad car or body car video footage, along with other relevant facts, show that the driver’s ability to operate the car was not impacted or even impaired by alcohol. Each case must be reviewed on its own merits, and no factual defense is a one size fits all theory of the case.
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