LEGAL GUIDE
Written by attorney Jonathan Andrew Paul | Oct 18, 2018

Are you a dangerous Michigan drunk driver or an irresponsible person? It could save your butt

Once a client is charged with drunk driving, a judge will set certain bond conditions. The most common condition is no use of alcohol, which makes sense due to the reason for the criminal charges. Most judges will also add alcohol testing, which can be with a PBT (portable breath test), an ETG (urine test that covers about 80 hours in time), a portable testing home unit or an alcohol tether.

For most first offenses, a judge will order "random testing"; frankly this is a pain in the ass for many of my clients. I work with mostly busy professionals (doctors, lawyers, executives, nurses, teachers, managers), and most of my clients have children and a ton of obligations jamming up their daily schedule. This by no means is meant to say busy people shouldn't alcohol test. I actually believe the opposite; I put all of my clients on a portable breath test unit from day one. I have them test twice daily and we hold ourselves even more accountable than the judge would order. This builds tremendous currency for later in the case.

Now with twice daily testing, my client is committing to remembering to test within a certain window twice per day, and over the course of say three months, that's 90 chances to screw up. A missed or late test is not a positive test, but a judge will consider it a violation. Even if your testing window is 6 am to 8 am and you "miss" by testing at 8:05 am - you then register a late test as well. All these lates and misses are listed on your results, and this is NOT a good conversation to have with the judge.

This is where a judge must decide "are you a dangerous drunk driver or an irresponsible person?" Meaning, although you didn't test positive for alcohol, something is up - why are you not testing on time, are you trying to hide something?

When on bond for a DUI in Michigan, the judge knows you have a valid license, the judge is not making sure you don't drink other than a scheduled test - if you REALLY wanted to sneak a drink you could probably do it and get away with it. So the judge must decide.

Are you violating the court order, drinking and putting the community at risk, or are you just too lazy, irresponsible or disorganized that you can't take a scheduled test? It's obviously better to be the irresponsible person, and I deal with this more than I would like to with my clients.

If I have a client missing tests or taking them outside the window, we need to answer for this with the judge. A judge is very likely to throw this person in jail unless there is an alternative solution. I have a two-part plan for this type of situation.

#1 - Self impose a sanction - this could be 15 hours of community service or signing up for an Impact Weekend. Client hasn't been sentenced in the case, but they are stepping up and doing something extra as an "alternative to jail"

#2 - We up the ante on the testing on our own if possible. Occasionally a client hires me after bond is set, and the client may still be on "random testing" which means maybe they are testing twice per week, but not showing up or coming too late. In this situation, I would have my client jump on the 2x daily unit; client would continue the random, but also do the daily - we would then go to court, and ask the judge to swap out the testing and adopt our more intensive testing. If the client is already on the soberlink unit and missing or they are late, we level up to an alcohol tether and/or an interlock for their vehicle.

These steps seem a little extreme, but it beats spending days or weeks sitting in jail. It's my view that an irresponsible or disorganized person needs a kick in the ass and to take responsibility on their own - they should NOT be sent to jail, but they will be unless they step it up on their own.

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